Tuesday, January 27, 2009

Former National Security Agency analyst Russell Tice shed new light on the Bush administration's warrantless domestic spying last week when he told MSNBC that the NSA blended credit card transaction records with wiretap data to keep tabs on thousands of Americans.

But Tice didn't say where the credit card information, and other financial data, came from. Did the agency scoop it in as part of its surveillance of U.S. communications backbones, or did financial companies give up your records in bulk to the NSA?

The distinction is significant. Telecommunication companies, such as AT&T and Verizon, are embroiled in lawsuits over their alleged cooperation with the government's warrantless surveillance. If credit card companies and banks also provided information without a warrant, it's conceivable they could face a courtroom challenge as well.

I spoke with Tice extensively in the spring of 2006. With Bush still in power, the whistleblower was considerably more taciturn than on television last week. But looking back through the transcript of my interviews now, in the context of his new revelations, it seems clear that Tice was saying that credit card companies and banks gave the same kind of cooperation to the government that phone companies did.

"To get at what's really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies, and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth," he said at the time. "Because anyone in the government is going to claim executive privilege."

The New York Times broke the story in 2006 that the NSA obtained access to financial records in the international SWIFT database. But that database mostly involves wire transfers of money in and out of the U.S., not domestic transactions. Tice's comments reveal that the agency may have obtained bulk data on domestic credit card transactions as well from U.S. financial institutions -- all without a warrant.

Shortly after Mark Klein, a retired AT&T employee in San Francisco, came forward with information about a secret room in a San Francisco building that appeared to be providing the NSA with a real-time data feed, two sources who once worked for the company told me about a similar room in the company's Bridgeton facility that appeared to be doing the same kind of data mining at a much greater level. Bridgeton is the network operations center for AT&Ts broadband services.

I turned to Tice for more details. Tice had already publicly identified himself as one of the sources the New York Times had used for its 2005 story on the government's warrantless wiretapping. Tice warned me at the start of our conversation that he believed our phone call was being monitored by the FBI and that there were a lot of things he wouldn't be able to discuss, on the advice of his lawyer.

Tice had been in the intelligence community since 1985. He entered the Air Force after finishing college, and went to work in signals intelligence. After leaving the military, he worked as an intelligence contractor, then was employed by the Defense Intelligence Agency before taking a job with the NSA.

His unclassified resume hides all of this history. "[It says] I deal with space systems. Space communications, all kinds of space weenie stuff. If it deals with outer space I'm your man," he said.

Do you have any connection to outer space stuff? I asked.

"I watch Buck Rogers."

What follows are excerpts from my interviews with Tice, beginning with his explanation of one way the NSA's data mining could operate.

Tice: Say you're pretty sure you're looking for terrorists, and you're pretty sure that the percentage of women terrorists as opposed to men is pretty [small]. So you just filter out all female voices. And there's a way to determine whether the signature of the voice is male or female. So, boom, you get rid of 50 percent of your information just by filtering there. Then from your intelligence work you realize that most terrorists never talk more than two minutes. So any conversation more than two minutes, you immediately filter that out. You start winnowing down what you're looking for.

Q: Without really knowing what it is you're looking for?

Tice: Right. And if you can develop a machine to look for the needle in the haystack and what you come out with from having the machine sift through the haystack is a box of straw, where maybe the needle's in there and maybe a few bonus needles, then that's a whole lot better than having humans try to sift through a haystack.

Q: Presuming that the NSA is collecting data in San Francisco or data mining, what happens to the data after it's collected? If they find actionable material in the data does the NSA pass it on to the FBI?

Tice: The NSA avoids sending anything to the FBI if they can help it. If there is a criminal element or activity in the data it has to be determined whether it's passed to the FBI, or Homeland Security, as it happens to be these days. When I was in the business, we all knew that the FBI leaked like a sieve. So we were very hesitant to take advantage of the FBI on anything because you were liable to see it on the news the next day. The FBI will compromise anything to get a conviction. But in the intelligence community you don't think that way. We're more than willing to let a criminal go to protect classified information. . . .

Q: But would the info be passed to the FBI if it involved terrorists and national security?

Tice: Yes, they would. And if it's some big mob thing, they would also give it to the FBI, but tell them to come up with some other way as to how they got the information.

Q: Why would the agency need to be so secretive about the AT&T rooms?

Tice: The big reason why they would put the San Francisco operation at such a high classification level is to hide the fact that they're breaking the law and to hide the fact that they're breaking the NSA's own policy. It should be [the sort of project] that any NSA analyst should be able to walk in and have access to. But to cloister it away where only a few people know about it means that it's something they don't want anyone to know about. ...

Say we're doing that same sort of deal overseas against a foreigner. ... More than likely anyone in NSA could potentially have access to that information. It wouldn't be compartmentalized. So if we set up that same scenario, even covertly in some frame room in Bucharest or something, anyone at NSA with a TS/SCI clearance could potentially look at intelligence reports from information garnered from that particular collection point. So all of a sudden that same thing is being used here in the states and it's being put into a special SAP program -- Special Access Program. ... They're extremely closely held programs that are super-duper clearance nonsense. It's what I specialized for the last eleven years or whatever.

Q: So you're saying that San Francisco and this other room [in Bridgeton] reek of "super-duper" secrecy?

Tice: Yes, it reeks of SAP. Potentially. For NSA to do what they did ... it means that they knew that it was illegal and the reason they put this super high clearance on it was because they were protecting their own hides to keep anyone within NSA from finding out that it was going on. ...

Let me tell you, the biggest sweat that happened at NSA happened when John Kerry almost got elected president [in 2004], because they were concerned they were all going to be thrown in jail. They were all wiping sweat off their forehead when he lost. That's the scuttlebutt.

Q: Is it correct to say that, if the NSA is doing what Mark Klein says they are doing, that this would be a departure from the NSAs mission? Meaning that this would be the first time since 1978 or so when FISA was passed that it was engaging in this kind of activity?

Tice: That's correct. This would be an entirely new business for them, especially since FISA.

If you look at USSID 18, the NSA's bible on how it operates, the number one commandment of the NSAs ten commandments is You Shall Not Spy on Americans. So when this was brought up, I assume by [former NSA Director Michael] Hayden, he knew that what he was proposing was a violation of the fourth amendment and of USSID 18. And everyone at NSA knows this, too, because it's drilled into our heads over and over again.

To get at what's really going on here, the CEOs of these telecom companies, and also of the banking and credit card companies and any other company where you have big databases, those are the people you have to haul in to Congress and tell them you better tell the truth. Because anyone in the government is going to claim executive privilege.

...

I just hope in the long run that ... at some point that the American people wake up and that this stuff is dealt with. Right now ... do you know the adage about the frog in the water? That's what we're dealing with here. The American people are the frog in the tepid water, and the temperature is slowly being turned up. And we're about to become frog soup, and the American people don't know what's happening.

Aristotle said that the biggest danger to democracy is not insurgency, it's apathy. And I think that's what we're seeing right now. To a large extent it's politicians doing CYA and doing everything they can to make sure that people don't know what's going on. But to another extent, it's the populace who is more concerned about Janet Jackson's breast jumping out of her dress at the Super Bowl as opposed to what's really important in this world. Who cares about Britney Spears having her baby on her lap or all that nonsense that you see on TV?

I've done my constitutional duty. I've done what I had to do. That's all I'll say. Let the chips fall where they may. I'm out of the game. I've fallen on my sword.